Judge: Mark H. Epstein, Case: 22SMCV02434, Date: 2024-04-17 Tentative Ruling

Case Number: 22SMCV02434    Hearing Date: April 17, 2024    Dept: I

The application to continue the trial is DENIED.  Plaintiff brings this motion after this court denied a proposed stipulation to continue the trial.  In support of this motion, plaintiff states: (1) counsel has a conflict because counsel has an arbitration set for 5/7/24 (the day after the trial is supposed to start); (2) mediation is set for July; and (3) discovery is not complete.  Plaintiff states that the case is not ready for trial and that plaintiff will be prejudiced by having to go to trial unready and unprepared and given the conflict with the arbitration.

A prior stipulation to continue the trial was denied.  The court will try again.

First, as to the conflict, the court simply does not understand the point.  The trial in this case was set long ago.  If counsel had a conflict, counsel should have pointed it out to the court and the court would have picked a different date.  The failure to do so cannot be cured at this point.  If there was no conflict at the time, then counsel should not have agreed to a conflicting arbitration date.  Counsel will need to explain to the other party in that case and the arbitrator that counsel double-booked.  That is not this court’s concern unless there was something unusual and unique about that case.  Even then, plaintiff’s counsel should have brought the conflict to this court’s attention immediately—not a month before the trial date.  In short, the conflict was something plaintiff’s counsel created knowingly.  It is not cause for this court to change its schedule.

Second, on May 5, 2023—eleven months before the stipulation was filed—the court directed that mediation be completed on or before August 31, 2023.  That date was set with counsel present and agreeing.  No party moved to continue the mediation date.  For reasons still not explained, both parties chose to ignore the court’s order.  The order was designed to allow mediation to occur—and even leave time for a second day—well in advance of trial.  And it was done with the consent of all parties.  The court hardly sees a choice by the parties not to follow the court’s order as good cause to continue the trial.

Finally, plaintiff’s counsel contends it just has not finished its work.  In the order rejecting the earlier stipulation, the court stated that the parties could try again if they could “make a compelling showing of diligence.”  No showing has been made here.  Plaintiff’s counsel submitted a bare bones declaration simply stating that more needed to be done.  There is no explanation of diligence, no explanation as to why it is that things were not done earlier, no explanation of unforeseen circumstances.  Merely saying that a year is not enough time to do the work because the case is complicated is not a showing of diligence.  That is even more the case because the trial date was set with the parties’ agreement and with the court specifically advising them to build some time for things to go wrong into the schedule.  (That was part of the court’s stock speech at the time.)  The fact that the parties were not diligent is not good cause.  Relatedly, plaintiff’s counsel states that it is awaiting a lien.  The court does not know why the lien has not yet been received, nor is the court of the view that the lien is so unknown that it precludes trial.  While the exact dollar figure might not be known, it is hardly the sort of thing that is beyond even estimation.  It seems more of a makeweight argument than real cause.

In short, there is no cause to continue the trial.  Any prejudice is of the parties’ own making.

Lest the parties think the court is being unreasonable, the court will take a moment to explain.  The court has about 1000 cases on its docket.  Each of them wants a trial date.  The court assumes that 11 of 12 will settle or resolve without trial, and that seems to the court to be realistic.  But it does not leave a lot of wiggle room for the court.  In short, the court’s trial calendar is severely congested.  Right now, the court is setting initial trial dates out 18 months from the CMC—which is itself often 6 months after filing.  And that is assuming 11 of 12 settle.  Worse, each week, trials are set out even farther.  In other words, if a CMC is delayed a week later, the trial is likely to be set two weeks later.

When the court had 400-500 cases on its docket, it would give initial unopposed continuances for a few months as a matter of course.  But the court just no longer has that luxury.  If the court continues this case for four months, it means that another case—where the parties worked diligently and are ready for trial—will be bumped.  The court could put this matter out until October 2025, but even then it would simply add to the court’s trial congestion.  In short, it is not fair to the court or to other more diligent litigants to continue the trial.  If the court had the flexibility to grant the request—even absent a showing of diligence—it would do so.  The court simply lacks that ability given the trial docket.

The court reminds the parties that the FSC and trial dates remain on the calendar.  They are to submit all FSC documents on time.  Failure to do so will result in sanctions.

All of that said, if there are other cases ready for trial on 4/29/24, the court will allow them to take priority over this one and will continue the trial on this case.  Right now, there are three cases (including this one) set for trial on 4/29/24 and one case that is set for trial on 4/22/24.  If the 4/22/24 case goes, it will likely not be done on 4/29/24.  However, the court will not know if that case is going or not until Friday.